Diversity & Inclusion

What Supreme Court’s split decision on immigration reform means for employers

by Jacob M. Monty

President Barack Obama’s executive actions on immigration were not upheld by the U.S. Supreme Court. Some of your employees are probably disappointed and unsure of how to move forward. The disappointment they are experiencing and displaying doesn’t mean they are undocumented workers, and you shouldn’t assume they are. Here are some insights for employers in the wake of the Court’s recent decision.  Supreme Court

Background on DACA+ and DAPA

November 20, 2014, was a day of celebration for families who had been living and working in the United States when President Obama announced the executive actions that would expand Deferred Action for Childhood Arrivals (DACA+) and create a new program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These two programs gave them the ability to legally work without the fear of deportation as long as they met the eligibility requirements. That celebration was short-lived.

On February 16, 2015, a federal judge in Texas blocked DACA+ and DAPA by ordering a nationwide injunction, meaning the programs could not be implemented. The 5th Circuit reaffirmed the decision on November 9, 2015. Then, on January 19, 2016, the Supreme Court decided to hear the case. Justices heard oral arguments on April 18 and made their decision June 23.

Supreme Court ruling

The Supreme Court is generally a panel of nine judges. With the passing of Justice Antonin Scalia on February 13, 2016, there was the chance of this decision being a 4-4 split. An equal split, as we have seen here, means the lower court’s decision is upheld. As it was a 4-4 split, all that was stated in the ruling was, “[t]he judgement is affirmed by an equally divided court.”

This ruling in no way affects the original DACA program, which became effective in 2012. This ruling has disappointed many people, but it will not end immigration reform. Obama stated in his press conference the day the ruling came down: “I think it is heartbreaking for the millions of immigrants who made their lives here, who’ve raised families here, who hoped for the opportunity to work, pay taxes, serve in the military and more fully contribute to this country we all love in a more open way.”

The future of immigration reform will be left to Obama’s successor, Hillary Clinton or Donald Trump. DAPA and DACA+ or programs similar to them taking effect will be determinative on what the next President decides to do regarding immigration reform.

What does this mean for you, the employer?

First and foremost, it’s important to understand that you will have employees who are disappointed in this outcome. Some may be undocumented (employers often aren’t aware of an employee’s true legal status), have a family member who is undocumented, or know someone who is undocumented. Protests may follow in the coming weeks and months, which can be considered a protected activity.

Remember that employees protesting and/or showing support for the executive action doesn’t mean they are undocumented worker. As an employer, there is no way for you to distinguish if an employee is an undocumented worker based on protests because there are many “split status” families in the United States; therefore, your employee could be protesting in support of an undocumented friend or family member. This is an important topic and issue for many people in the country, whether they are of legal status or not.

All of the policies and procedures you put into place in anticipation of full immigration reform should stay intact. This will not be the end of immigration reform. Too many individuals in the U.S. are directly involved.

Immigration compliance

It’s important to continue with immigration law compliance. Your procedures for I-9 verification should not be affected by the Court’s decision. Maintaining a work environment that upholds federal labor laws is vital. The keys are making sure your Form I-9s are completed properly and addressing any issues about an employee’s lack of status that may arise.

Bottom line

Immigration reform is too important of a topic for this to be the end of it. Make sure you maintain your procedures and policies. This topic will come back around, and staying informed will assist you in the future when immigration reform likely makes a return.

If you need assistance in enforcing or writing policies and procedures that align with the current Supreme Court decision and immigration reform, it’s best to contact an experience labor and employment attorney.

Jacob M. Monty of Monty & Ramirez LLP, practices at the intersection of immigration and labor law. He is the managing partner of the Houston firm and may be contacted at jmonty@montyramirezlaw.com.